Using market inquiries: A sharper tool for competition authorities?

by | Oct 13, 2024 | SAMLJ, SAMLJ V35 I3

Using market inquiries: A sharper tool for competition authorities?

Authors: Itumeleng Lesofe & Siphosethu Tetani

ISSN: 1996-2185
Affiliations: Principal Analyst, Competition Commission SA; Senior Analyst, Competition Commission SA
Source: South African Mercantile Law Journal, Volume 35 Issue 3, 2023, p. 327 – 369
https://doi.org/10.47348/SAMLJ/v35/i3a4

Abstract

The emergence of new markets, especially in the digital sector where business models are complex and innovation is constantly changing the competition landscape, has brought about new regulatory challenges for competition agencies across the world. These challenges may require a departure from the traditional tools of enforcement and the development of a somewhat new regulatory approach. In middle-income countries, the need for the adjustment of enforcement tools is further necessitated by persistent and stubbornly high levels of concentration in key sectors that have a potential to contribute to the realisation of an inclusive and growing economy. For example, in South Africa, the Competition Commission of South Africa (CCSA) has recorded unquestionable successes in cartel enforcement in the past two decades, with hefty fines imposed against those found to have participated in cartel conduct. However, the application of traditional tools of enforcement in abuse of dominance cases has borne little success and, as a result, key industries such as steel and agriculture remain highly concentrated. This has prompted government, through the Department of Trade, Industry and Competition, to strengthen the powers of the CCSA by, among other things, adding to its toolbox the power to conduct market inquiries. This article examines whether market inquiries are best suited, and a more effective enforcement tool used to address market concentration challenges in South Africa. The article draws from market inquiries conducted by the CCSA in banking, data, and digital sectors. It also critiques the CCSA’s powers to conduct market inquiries.

Does a settlement agreement between litigants in a civil dispute terminate the jurisdiction of the court?

by | Oct 13, 2024 | SAMLJ, SAMLJ V35 I3

Does a settlement agreement between litigants in a civil dispute terminate the jurisdiction of the court?

Author: R C Williams

ISSN: 1996-2185
Affiliations: Professor Emeritus, University of KwaZulu-Natal Pietermaritzburg
Source: South African Mercantile Law Journal, Volume 35 Issue 3, 2023, p. 370 – 389
https://doi.org/10.47348/SAMLJ/v35/i3a5

Abstract

This article addresses the legal consequences of a settlement agreement concluded, prior to judgment, between litigants engaged in a civil dispute, with a particular focus on the effect of such an agreement on the jurisdiction of the adjudicating court. Does the settlement agreement terminate the jurisdiction of the court in respect of the litigated issues? Or does the court have the power to ignore the settlement agreement if it does not reflect the equities of the dispute between the litigants and give a judgment based on its own assessment of the equities of the claim and the defence? Or if the court takes the view that the settlement agreement is an attempt by the litigants to avoid the judicial scrutiny of improper conduct û in which event can the court give an order that will prevent the litigants from carrying out the agreement? The focus of this article is the conflict, in this regard, between two recent decisions of the Supreme Court of Appeal.

Case Note: A discussion of penalties for non-compliance with picketing rules: Clover SA (Pty) Ltd v General Industries Workers Union of South Africa & others [2021] 4 BLLR 419 (LC)

by | Oct 13, 2024 | SAMLJ, SAMLJ V35 I3

Case Note: A discussion of penalties for non-compliance with picketing rules: Clover SA (Pty) Ltd v General Industries Workers Union of South Africa & others [2021] 4 BLLR 419 (LC)

Author: Mashudu Monica Mulaudzi

ISSN: 1996-2185
Affiliations: Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 35 Issue 3, 2023, p. 390 – 407
https://doi.org/10.47348/SAMLJ/v35/i3a6

Abstract

None

Demystifying the value-added tax effects of foreign branches in South Africa: The Wenco case

by | Mar 10, 2024 | SAMLJ, SAMLJ V35 I2

Demystifying the value-added tax effects of foreign branches in South Africa: The Wenco case

Author: Faeeza Soni

ISSN: 1996-2185
Affiliations: CA (SA), Senior Lecturer, School of Accountancy, University of the Witwatersrand
Source: South African Mercantile Law Journal, Volume 35 Issue 2, 2023, p. 123 – 137
https://doi.org/10.47348/SAMLJ/v35/i2a1

Abstract

The application of South African value-added tax (VAT) principles to transactions involving foreign branches is challenging. A recent judgment made in Wenco International Mining Systems Ltd & another v CSARS (59922/2019) [2021] ZAGPPHC 70 brought the uncertain applications of the VAT Act to the forefront. An awareness of the uncertainties could guide policymakers to improve the legislation and assist tax professionals who advise their clients. This research adopts a qualitative approach and traditional legal doctrinal methodology. It proposes amendments to the legislation. I question the application of s 8(9) of the VAT Act because proviso (ii) of the definition of ‘enterprise’ separates the activities of foreign branch or foreign main business from those of the vendor. It is unclear if a foreign branch or foreign main business is treated as a separate ‘person’ in the VAT Act, with all the accompanying powers of another ‘person’. The proviso is also unclear about whether it applies only if the foreign branch or foreign main business makes supplies ‘for consideration’. It is unclear whether s 11(1)(i) and 11(2)(o) should apply, as opposed to s 11(1)(a) and 11(2)(l).

A comparative assessment of the treatment of unincorporated business entities in financial distress in South Africa

by | Mar 10, 2024 | SAMLJ, SAMLJ V35 I2

A comparative assessment of the treatment of unincorporated business entities in financial distress in South Africa

Authors: Kudzai Mpofu & Hermanus Johannes Moolman

ISSN: 1996-2185
Affiliations: Senior Lecturer, School of Law, Walter Sisulu University; Senior Lecturer, Department of Mercantile Law, University of the Free State
Source: South African Mercantile Law Journal, Volume 35 Issue 2, 2023, p. 138 – 161
https://doi.org/10.47348/SAMLJ/v35/i2a2

Abstract

The main objective of this paper is to examine how business rescue schemes in South Africa facilitate the rescue of sole proprietorships and partnerships (unincorporated business entities) in financial distress. It is premised on the view that when a business is in financial distress, the lawmaker should provide some form of business rescue scheme accessible to all debtors regardless of their legal status, size, or commercial activities. The business rescue process has arguably received the most scholarly attention in recent times, yet, little or no attention is paid to the fate of financially distressed unincorporated entities in South Africa. The article sheds light on the role and significance of small and medium enterprises in promoting economic growth and the need to promulgate a debtor-friendly rescue regime. Through a comparative assessment, different business rescue schemes available to unincorporated business entities in South Africa, the United States of America and the United Kingdom are explored. It is observed that sole proprietorships and partnerships, which account for most unincorporated business entities in South Africa, are not eligible for business rescue or debt relief under the existing legislation. The rationale behind excluding unincorporated business entities from business rescue legislation seems to be that they lack legal personality. However, in other jurisdictions, the legislature has promulgated special business rescue procedures customised to match the unique personality of unincorporated business entities. Therefore, the South African legislature should consider promulgating a business rescue model for unincorporated business entities separate from the current Chapter 6 business rescue. Chapter 13 of the USA Bankruptcy Code provides an ideal rescue scheme for sole proprietors, while the UK insolvent partnership administration provides lessons on how to modify a business rescue scheme applicable to companies to accommodate partnerships in financial distress. The article contributes to the development of business rescue legislation that is targeted at relieving small businesses in financial distress.

Hiding behind the veil: On whom does liability for discriminatory practices by recruitment agencies fall

by | Mar 10, 2024 | SAMLJ, SAMLJ V35 I2

Hiding behind the veil: On whom does liability for discriminatory practices by recruitment agencies fall

Authors: Davy Rammila & Ernest Manamela

ISSN: 1996-2185
Affiliations: Senior Lecturer, University of South Africa; Professor, University of South Africa
Source: South African Mercantile Law Journal, Volume 35 Issue 2, 2023, p. 162 – 189
https://doi.org/10.47348/SAMLJ/v35/i2a3

Abstract

The Employment Equity Act 55 of 1998 (EEA) provides that applicants for employment are employees for purposes of its unfair discrimination provisions. The EEA is, however, silent in respect of applicants who seek employment through recruitment agencies. In this article, we argue that this silence has the potential to handicap these applicants and deprive them of the statutory procedure they would have enjoyed had they otherwise applied directly to employers. We further contend that the relationship between recruitment agencies and applicants for employment is not capable of being construed to fall within the provisions of s 4 of the EEA. We also posit that it would be unreasonable to expect these applicants to follow an onerous process under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000; this, despite there being a clear employment nexus informing the foundation and execution of the juristic act between the respective parties. Instead, we propose that recruitment agencies are agents in the ordinary sense, that their engagements with applicants enjoy prior authorisation from the potential employer, and that any consequences of such engagements are attributable to the potential employer.